Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 1370 (MAD)

Mariyapushpam v. Mathias and others

2001-11-19

M.CHOCKALINGAM

body2001
JUDGMENT: S.A.No.1307 of 1990 has been preferred from the judgment and decree of the learned subordinate Judge, Kuzhithurai made in A.S.No.284 of 1983 dated 4.4.1990 modifying the judgment and decree of the learned Principal District Munsif, Kuzhithurai, made in O.S.No.447 of 1974 dated 13.8.1983 while S.A.No.1308 of 1990 has arisen from the judgment and decree of the learned Subordinate Judge, Kuzhithurai made in A.S.No.285 of 1983 dated 4.4.1990 modifying the judgment and decree of the learned Principal District Munsif, Kuzhithurai made in O.S.No.267 of 1974 dated 13.8.1983. 2. The first respondent herein and one Sesadima filed a suit in O.S.No.447 of 1974 for partition, charge of mortgage security or in the alternative, a decree for mortgage money with the following averments. The suit property belonged to Madamma Kochappi of Vallavila Puthuval Puthen house. She died issueless in or about 1961. She had three sisters viz. Perumal, Lekshmi and Kaliamma and two brothers viz. Pandaram and Velu. The first defendant one of the sisters was entitled to 1/5th share in the suit property. Perumal and Lekshmi died leaving five children each. Defendants 2, 3 and 16 to 18 were the children of Perumal while defendants 9 to 12 and 19 were the children of Lekshmi. Each branch was entitled to 1/5th share. The two brothers were also dead. The 4th defendant was the widow of Pandaram while defendants 5 to 8 were his children. Defendants 13 and 14 were respectively the wife and son of Velu. Defendants 4 to 8 were together entitled to 1/5th share. The 15th defendant was the subsequent encumbrancer under the first defendant. Madamma Kochappi mortgaged 10 bearing coconut trees and 20 cents of land in the suit property for a sum of Rs.1,000 in the year 1960 to Vasthian Stanislaus and others. One Ananthayyan who got assignment of the said mortgage in the year 1963 assigned the same on 3.8.1964 in favour of one Meenakshi and from the latter, the first plaintiff got an assignment on 15.12.1971. She executed another mortgage for a sum of Rs.120 in the year 1961 in favour of one Varaveedu Arulappan in respect of 13 bearing coconut trees and 13 cents of land in the suit property. She executed another mortgage for a sum of Rs.120 in the year 1961 in favour of one Varaveedu Arulappan in respect of 13 bearing coconut trees and 13 cents of land in the suit property. The first plaintiff was in possession of 23 coconut trees and 33 cents of land in the suit property, after the said Meenakshi who got an assignment of the above mortgage in 1964, assigned the same in favour of the first plaintiff. The 18th defendant sold 10 cents of land and 15 coconut trees in the suit property on 21.1.1967 to one Seshayyan, who sold it on 14.2.1967 to the 20th defendant husband of the 17th defendant. The defendants 17 and 20 jointly executed a sale deed for 12 cents of land in favour of Mariadasan and the latter sold the same to the first plaintiff on 4.2.1972. The defendants 13 and 14 sold 10 cents on 13.9.1969 to Joseph, who in turn sold the same to the first plaintiff on 4.2.1972. The sale by Mariadasan and Joseph was in one sale deed and the said portion of 22 cents was described as the eastern portion. A portion of 12 cents on the west was purchased by the plaintiffs 1 and 2 from the defendants 16 and 19 on 28.3.1974. Thus the plaintiffs 1 and 2 were entitled to 34 cents in the suit property. The suit property was measuring 1 acre and 52 cents as per the settlement. The plaintiffs were liable to pay a sum of Rs.492.10 for their 34/152 share in the suit property towards the mortgage money secured in the suit property towards the mortgage money secured under the mortgages executed by Madamma Kochappi. The balance of Rs.1,707.90 was to be paid by the defendants and the same was a charge upon the share of the defendants and the plaintiffs have the right to enforce the same. Hence, the suit might be decreed. 3. The defendants 3 and 9 to 12 have filed a written statement admitting the plaint averments in respect of title and shares of the parties and the mortgages executed by Madamma Kochappi. Hence, the suit might be decreed. 3. The defendants 3 and 9 to 12 have filed a written statement admitting the plaint averments in respect of title and shares of the parties and the mortgages executed by Madamma Kochappi. They also contended that they were not aware of the rights of the 15th defendants, the mortgage executed by the defendants 1 and 2 and the other sale deeds referred in the plaint; that they were each entitled to 1/25 share; that they have their residential buildings and a well in the suit property; that their share has to be partitioned and separately allotted to them and that the plaintiffs were not entitled to the equities claimed. 4. The defendants 4 to 8 have filed a joint written statement alleging that they were willing to pay the proportionate share of mortgage money; that they were entitled to the reliefs under Agriculturists Relief Act and that they were entitled for partition of their share i.e., 30 cents, 400 sq. links with proportionate road frontage. 5. The defendants 13 and 14 filed a joint written statement alleging that they were willing to pay the proportionate mortgage money due from them as per Agriculturists Relief Act and that they were entitled to their share of 20/400 cents with proportionate road frontage. 6. The 15th defendant filed a written statement with the following averments. Perumal and the first defendant were the only sisters of Madamma Kochappi and they alone inherited her. The first defendant and Perumal were each entitled to one half of the suit property. Pursuant to the agreement dated 8.5.1972 the first defendant sold a portion of 25 cents in the south eastern portion of suit property to D-15 on 26.6.1974 and D-15 was entitled to get the portion of 25 cents partitioned in her favour. Even assuming that D-15 was entitled only to 1/5 share, she was entitled for 25 cents since the sale deed was the first conveyance in the suit property. The alleged sale deeds were invalid and the plaintiffs were not entitled to 34 cents in the suit property and the first plaintiff has no building in the suit property. Without producing the mortgage deeds, the claim of the plaintiffs to enforce the same was not maintainable. 7. The alleged sale deeds were invalid and the plaintiffs were not entitled to 34 cents in the suit property and the first plaintiff has no building in the suit property. Without producing the mortgage deeds, the claim of the plaintiffs to enforce the same was not maintainable. 7. The 23rd defendant filed a written statement contending that he was entitled to 51.167 cents in the suit property by virtue of the purchase from D-1 on 7.2.1976 and he was entitled for partition of the same. The tile if any of others was lost by adverse possession. 8. The defendants 16 and 18 remained ex parte. The 19th defendant died subsequent to the suit and defendants 21 and 22 were impleaded as legal representatives of deceased 19th defendant. Defendants 21 and 22 also remained ex parte. The defendants 1, 17 and 20 have not filed any written statement. 9. In the additional written statement filed by the 9th defendant, it is alleged that the husband of Madamma Kochappi viz. Isakki Madan did not leave any personal heir; that on the death of Madamma Kochappi in 1961, her properties were taken possession of by her two sisters Madamma Perumal, M.Kaliyamma and the children of another sister Madamma Lekshmi and the children of her two brothers Podiyan Pandaram and Podiyan Velayudhan; that even assuming that Esaki Madan had left any personal heirs, their rights if any, were lost to them by the long, continuous and hostile possession of the heirs of Madamma Kochappi from 1961 onwards and that the defendants 3 and 9 to 12 have absolute title over 1/5 of the suit property and they were in actual possession of the same. 10. The defendants 4 to 8, 13 and 14 filed an additional written statement stating that Esaki madan had no personal heirs to inherit the properties; that the heirs of Madamma Kochappi inherited her rights; that the vendors of the plaintiff and defendants 4, to 8, 13 and 14 obtained the right and they are in possession of the property; that the plaintiffs and defendants 4 to 8, 13 and 14 have right in the suit property and the defendants 4 to 8 and 13 and 14 are entitled to get partition of their share. 11. 11. In the additional replication filed by the plaintiffs, it was contended that Esakkimadan did not leave any personal heirs; that he was the only surviving number of his family at the time of his death and whatever personal property left by him devolved on his widow Kochappi; that he did not have any immovable property for his heirs to take; that the only change modified by custom is that if a male member died leaving self acquired or separate property, if he left wife and children then they were entitled to one half of such properties and the marumakkathayam heirs get the other half; that if there was no wife or children then the marumakkathayam heirs took the whole; that when Madamma Kochappi died inheritance to her properties was governed by Sec.17 of the Hindu Succession Act; that as such the properties left undisposed of her devolved on the heirs of her mother and not to any other set of people; and that having accepted the title of the first defendant, the 3rd defendant is estopped from pleading that the heirs of Kochappi are the heirs of her husband. 12. The appellant, the fifth defendant and one Kaliamma filed a suit in O.S.No.267 of 1974, seeking for redemption on the allegation that the suit property belonged to the plaintiffs; that they mortgaged the same in favour of the defendants on 15.2.1967 for a sum of Rs.2,500; that the defendants have not effected any improvements in the suit property; that inspite of the notice by the plaintiffs, the defendants were not willing to suffer redemption and hence the suit might be decreed. 13. The defendants 1 and 2 filed a written statement with the following averments. The suit property was a portion of 1 acre in S.No.1277/3 and 52 cents in S.No.1278/1 and the same belonged to one Madamma Kochappi who died issueless. The three sisters and two brothers of Madamma Kochappi were each entitled to 1/5 share in the suit property. Madamma Kochappi executed two mortgages for a portion of 33 cents i.e., 20 and 13 cents and by subsequent assignments these mortgage right now vests with the first defendant. From the successor in title of the other heirs of Madamma Kochappi, the defendants had purchased 34 cents in the suit property and for partition of the same they have filed O.S.No.447 of 1974. From the successor in title of the other heirs of Madamma Kochappi, the defendants had purchased 34 cents in the suit property and for partition of the same they have filed O.S.No.447 of 1974. The defendants have effected valuable improvements in the suit property. They have given reply to the suit notice. The defendants were not liable to pay the costs of the plaintiff, but the plaintiffs have to pay the costs of the defendants. 14. On the above pleadings, the trial Court framed the necessary issues in each suit, tired both the suits together and rendered common judgment granting preliminary degree for redemption in favour of the third plaintiff in O.S.No.267 of 1974, while granting a preliminary decree for partition is passed in favour of the plaintiffs for 34 cents, in favour of defendants 3 and 9 to 12 together for 30,400 cents, in favour of defendants 4 to 8, 13 and 14 together for 50,800 cents and in favour of 23rd defendants 51.167 cents in the suit survey numbers. Aggrieved over the same, the plaintiff in O.S.No.447 of 1974 preferred an appeal in A.S.No.284 of 1983, while the defendants in O.S.No.267 of 1974 preferred an appeal in A.S.No.285 of 1983 on the file of the Sub Court, Kuzhithurai. The learned Subordinate Judge after enquiry of both the appeals has modified the judgments and decrees rendered by the learned District Munsif, Kuzhithurai in both the suits. Aggrieved over the same, the 23rd defendant in O.S.No.447 of 1974 has preferred Second Appeal No.1307 of 1990, while the third plaintiff in O.S.No.267 of 1974 has preferred S.A.No.1308 of 1990. 15. At the time of admission, the following substantial questions of law were formulated for consideration of these second appeals. (1) Whether in view of the estoppel against the appellants before him due to Ex.A-5, the learned Subordinate Judge is right in holding that the appellant herein is not entitled to 51.167 cents, but entitled to only 5.400 cents? (2) Whether in view of the legal principle that the mortgagee cannot deny the title of the mortgagor, the learned Subordinate Judge is correct in interfering with the judgment and decree of the trial Court? (2) Whether in view of the legal principle that the mortgagee cannot deny the title of the mortgagor, the learned Subordinate Judge is correct in interfering with the judgment and decree of the trial Court? S.A.No.1308 of 1990: (1) Whether in view of the estoppel against the appellants before him, due to Ex.A-5, the learned Subordinate Judge is right in modifying the judgment and decree for redemption passed in favour of the appellant herein by the trial Court and holding that she is entitled to redeem only 5.400 cents of land? (2) Whether in view of the principle that the mortgagee cannot deny the tile of the mortgagor, the learned Subordinate Judge is correct in interfering with the judgment and decree of the trial Court. 16. As seen above, these two second appeals have arisen from the judgment of the learned Subordinate Judge, Kuzhithurai modifying the judgment of the learned District Munsif, Kuzhithurai granting the relief of preliminary decree for redemption and partition in the said two suits. 17. Arguing for the appellant in both the appeals, the learned counsel inter alia would submit that the trial Court only after proper appreciation of evidence and proposition of law has given a well considered judgments and hence, the lower appellate Court should have confirmed the same; that the learned Subordinate Judge has omitted to consider the vital materials in the case; that it is pertinent to note that the respondents/ defendants were estopped from contending against the title claimed by the mortgage taken by the plaintiffs from the defendants 1 and 2, they were estopped from contending against the title claimed by the appellant, who was claiming under the first defendant; that the learned Subordinate Judge has not accepted the well established legal position that the mortgagee cannot question the title of the mortgagor; that the lower appellate Court should have held that the sale deeds relied on by the plaintiffs alleged to have been executed by persons other than Madamma Kaliamma, were not valid or competent and it is pertinent to note that the appellant had perfected title by adverse possession also. Hence, these appeals are got to be allowed. 18. Hence, these appeals are got to be allowed. 18. The learned counsel appearing for contesting respondents would submit that the trial Court without proper consideration and appreciation of evidence oral and documentary has granted preliminary decree for redemption in favour of the third plaintiff, the appellant herein; that on the day when the sale deed was executed in favour of the appellant/ third plaintiff, what was available in the hands of the first defendant Kaliamma was only 5.4 cents; that she has also executed a sale deed in favour of the 15th defendant for 25 cents under Ex.B-1; that the lower Court without considering the evidence in proper perspective found that the appellant/23rd defendant was entitled to 51.67 cents in the suit property; that on appeal, the lower appellate Court after thorough analysis of the evidence and after elaborate discussion has arrived at a correct conclusion and has modified the judgment of the trial Court. Hence, there is nothing to interfere in the judgment of the lower appellate Court and it has got to be sustained and both the appeals have got to be dismissed. 19. These two second appeals have been filed by one Mariyapushpam, the third plaintiff in O.S.No.267 of 1974 and 23rd defendant in O.S.No.447 of 1974 challenging the judgment of the lower appellate Court in modifying the judgments of the trial Court granting a preliminary decree for redemption in O.S.No.267 of 1974 and a preliminary decree for partition in O.S.No.447 of 1974. As seen above, O.S.No.267 of 1974 was a suit for redemption of mortgage. The specific averment that the suit property belonged to the plaintiffs therein; that they mortgaged the same in favour of the defendants on 15.2.1967 for a sum of Rs.2,500; that the mortgagees were in possession; that despite notice, the defendants were not willing to suffer redemption, which necessitated them to file a suit. While admitting the suit mortgage and expressing their willingness for settlement the same, the defendants contended that the suit for partition has been filed in O.S.No.447 of 1974 and the same was pending. The plaintiffs in O.S.No.447 of 1974 sought for partition with the above averments. Concededly, the immovable properties described in the schedule in O.S.No.447 of 1974 belonged to Madamma Kochappi, Hindu, who died issueless after the passing of the Hindu Succession Act of 1956. It is also not in dispute that her husband predeceased here. The plaintiffs in O.S.No.447 of 1974 sought for partition with the above averments. Concededly, the immovable properties described in the schedule in O.S.No.447 of 1974 belonged to Madamma Kochappi, Hindu, who died issueless after the passing of the Hindu Succession Act of 1956. It is also not in dispute that her husband predeceased here. Since Kochappi died intestate, by operation of law, namely, the provisions of the Hindu Succession Act, 1956 her properties devolved on her sister and brothers. The case of the plaintiff in O.S.No.447 of 1974 was that Madamma Kochappi had three sisters and two brothers and each entitled to 1/5th share, but the defendants contended that she had only two sisters, namely, the first defendant and another. After discussing the available evidence the trial Court has found that the first defendant, Perumal and Lekshmi were the sisters and two brothers, namely, Pandaram and Velu were the heirs of Madamma Kochappi and each was entitled to 1/5th share in the suit property. On appeal, the lower appellate Court has also affirmed the findings recorded by the trial Court. At this stage, it has got to be pointed out that this finding of the trial Court, which was confirmed by the lower appellate Court is not challenged by the appellant herein and thus the said finding has become final. Hence, Kaliamma, the first plaintiff in O.S.No.267 of 1974 and who is also the first defendant in O.S.No.447 of 1974 was entitled to only 1/5th share in the properties of the deceased Madamma Kochappi. It is not in dispute that Madamma Kochappi had 1 acre in S.No.1277/3 and 52 cents in S.No.1278/1, thus totalling to 1 acre, 52 cents in which the said Kaliamma was entitled to 30.4 cent towards her 1/5th share. It is evident from Ex.B-1, sale deed that the said Kaliamma has executed a sale deed that the said Kaliamma has executed a sale deed on 26.6.1975 in respect of 25 cents. Thus what was available in the hands of the first defendant Kaliamma after execution of Ex.B-1 was only 5.4 cents. As rightly pointed out by the lower appellate Court, though the first defendant Kaliamma had executed 51.167 cents to the 23rd defendant/ appellant herein, she was entitled to only 5.4 cents. 20. Thus what was available in the hands of the first defendant Kaliamma after execution of Ex.B-1 was only 5.4 cents. As rightly pointed out by the lower appellate Court, though the first defendant Kaliamma had executed 51.167 cents to the 23rd defendant/ appellant herein, she was entitled to only 5.4 cents. 20. The next contention that was put forth by the appellant’s side was that the appellant was entitled for redemption of the othi made under Ex.A-5. The said Othi under Ex.A-5 was executed by Kaliamma, Narayani to the plaintiffs 1 and 2 in respect of 50 cents, which formed part of the total extent of 1 acre, 52 cents which is shown in the schedule in O.S.No.447 of 1974. It is pertinent to point out that the first defendant Kaliamma was entitled to only 30.4 cents. It is contended by the contesting respondents that the redemption in respect of 50 cents which was shown as subject matter of the othi under Ex.A-5 cannot be ordered in view of the fact that the first defendant Kaliamma was entitled to only 30.4 cents. Relying on the decision of this Court reported in Appu Gounder v. Munuswami Kone, (1962)1 M.L.J. 229 : A.I.R. 1962 Mad. 395, it was contended by the learned counsel for the appellant that the mortgagees were estopped from contending against the title of the mortgagors. The mortgage deed under Ex.A-5 is not disputed. The dispute between the parties was in respect of the share in the property and as to the right of the plaintiff in O.S.No.267 of 1974 for redemption of the mortgage under Ex.A-5. The 15th defendant in O.S.No.447 of 1974 has claimed title for 25 cents under Ex.B-1, dated 26.6.1975. Likewise, the appellant herein, who was the 23rd defendant claimed title under Ex.B-6, dated 7.2.1976 which was subsequent to the sale deed executed by Kaliamma under Ex.B-1, dated 26.6.1975. There is a clear recital under Ex.B-6 executed by the first defendant in favour of the 23rd defendant directing the vendee to redeem the said mortgage. It is true that the mortgagee is estopped from questioning the title of the mortgagor. But in the instant case, even at the time of executing the mortgage, the first defendant Kaliamma was entitled to only 1/5th share, i.e., 30.4 cents in the total property. It is true that the mortgagee is estopped from questioning the title of the mortgagor. But in the instant case, even at the time of executing the mortgage, the first defendant Kaliamma was entitled to only 1/5th share, i.e., 30.4 cents in the total property. As stated above, the first defendant, Kaliamma has executed as sale deed under Ex.B-1, dated 26.6.1975 in respect of 25 cents out of 30.4 cents which she was entitled to. Hence, though Ex.B-6 was executed by Kaliamma in favour of the 23rd defendant/ appellant herein respect of a larger extent, she could claim only 5.4 cents, which were available in the hands of Kaliamma on the date of Ex.B-6. Under the circumstances, the lower appellate Court was perfectly correct that the third plaintiff appellant in O.S.No.267 of 1974 was entitled to exercise of right of redemption only to the extent of 5.4 cents in respect of which she could claim title under Ex.B-6. Thus, the lower appellate Court after careful analysis of the evidence and scrutiny of the materials has rightly set aside the judgment of the trial Court and has recorded the correct findings. Under such circumstances, the Court is unable to appreciate or accept any one of the contentions put forth by the appellant’s side, since they do not carry any merits. This Court is of the considered view that there is nothing to interfere with the common judgment rendered by the lower appellate Court. 21. In the result, these second appeals are dismissed. The judgment and decree of the lower appellate Court are confirmed. No order as to costs.